The first instance court rejected the existing claim, but the appellate court rejected all the existing claim and the expanded claim in the appellate trial; / Whether there is an omission of the trial in the case of absence of explanation in the text even though the reasons for the judgment are explained without merit (affirmative in principle), and whether an appeal as to the omitted part is legitimate (negative)

Articles 208 and 212 of the Civil Procedure Act

Supreme Court Decision 2006Da28256 Decided August 23, 2007 (Gong2009Ha, 1427)

Plaintiff

Defendant 1 and one other

Ulsan District Court Decision 2015Na4108 decided March 8, 2017

The Plaintiff’s appeal as to the claim extended by the lower court is all dismissed. All remaining appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

1. We examine ex officio the appeal on the part of the claim expanded by the original judgment on the legitimacy of the appeal.

A. In a case where a claim is extended for the appellate trial, the appellate court shall judge the extended claim as the first instance court in substance. As such, the appellate court ruled that "the plaintiff's claim is dismissed" while rejecting the existing claim, the appellate court shall not merely indicate the order "if all the existing claims and the expanded claims are rejected, the appeal shall be dismissed," and at the same time, the appellate court shall indicate the order "the plaintiff's claim shall be dismissed." On the other hand, in order to clarify the court's decision, the judgment shall be stated in the text in order to determine whether there is omission of judgment. Thus, even if the reasons for the judgment are explained that the request for judgment is groundless, it shall be deemed that the judgment is omitted unless there is any special reason, unless it states that the reasons for the judgment is without merit, and the part of the lawsuit is still pending in the original court, and thus, the appeal against that part is unlawful (see, e.g., Supreme Court Decision 2006Da282569, Aug. 23, 2007).

B. According to the records and reasoning of the judgment of the court of first instance, the plaintiff filed a claim in the court of first instance to the effect that "the defendant jointly and severally pays to the plaintiff KRW 21 million and its delay damages." The court of first instance rejected the judgment. After the plaintiff appealeds against the plaintiff, the court of first instance stated that "the defendant jointly and severally pays to the plaintiff 80,677,613 won and its delay damages." The court of first instance shall expand the purport of the claim on July 25, 2016 to the effect that "the defendant shall pay to the plaintiff 80,67,613 won and its delay damages." However, the court of first instance states that the plaintiff's claim, including the claim extended by the court of first instance, is without merit, while the court of first instance states that "the plaintiff's appeal against the plaintiff is dismissed in all." Thus, in light of the legal principles as seen earlier, the court of first instance omitted the judgment on the claim extended by the court of first instance, and the plaintiff's appeal is not dismissed.

2. The plaintiff's grounds of appeal as to the remainder of claims are examined.

The Plaintiff’s ground of appeal is the purport of disputing the fact-finding of the lower court. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s judgment is just and acceptable, and there was no error of misapprehending the legal principles and logical rules or of misconception of facts due to insufficient deliberation,

3. Conclusion

Therefore, all of the Plaintiff’s appeals regarding the part of the claim extended by the lower court are dismissed, and all of the Plaintiff’s appeals as to the remainder of the claim are dismissed. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating

Justices Kim Shin (Presiding Justice)